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04/26/83 D.L.S. v. CHILDREN'S SERVICE SOCIETY

April 26, 1983

IN THE INTEREST OF D.L.S., A PERSON UNDER THE AGE OF 18: T.M.F., APPELLANT-PETITIONER,
v.
CHILDREN'S SERVICE SOCIETY OF WISCONSIN, RESPONDENT



Review of a decision of the Court of Appeals. Reversing and remanding Shirley S. Abrahamson, J.

The opinion of the court was delivered by: Abrahamson

This is a review of an unpublished decision of the court of appeals filed September 21, 1982, affirming two orders of the circuit court for Brown county, John C. Jaekels, Circuit Judge. *fn1 The circuit court, on petition of T.M.F., ordered termination of T.M.F.'s parental rights to her infant son, D.L.S., on concluding that T.M.F.'s consent to the termination was voluntary and informed. Sec. 48.41, Stats. 1979-80. *fn2 Subsequently the circuit court entered an order denying T.M.F.'s motion for rehearing on the termination order, finding that no new evidence warranted a rehearing. Sec. 48.46, Stats. 1981-82. *fn3

The issue on appeal is whether the circuit court erred in concluding that T.M.F.'s consent to the termination of her parental rights was voluntary and informed. The court of appeals affirmed the orders of the circuit court. We reverse the court of appeals because we conclude that the proceedings before the circuit court were inadequate and the circuit court did not have sufficient information upon which to base its Conclusion. We remand the matter to the circuit court to permit T.M.F. to withdraw her petition.

On June 27, 1981, T.M.F. (nearly 16 years old) gave birth to a son, D.L.S. The child was placed in a temporary foster home where he still lives. On August 25, 1981, T.M.F. filed a petition for termination of her and the putative father's parental rights. On the same day, the circuit court appointed two guardians ad litem, one for T.M.F. and one for D.L.S., held a hearing on T.M.F.'s petition, and signed the termination order. Within two weeks after the hearing T.M.F. communicated with the State Public Defender seeking to appeal the termination order. The appeal was filed on September 25, 1981, within the 30-day time period set forth in sec. 48.43(6), Stats. 1979-80. See In the Interest of J.D., 106 Wis. 2d 126, 315 N.W.2d 365 (1982). T.M.F. then moved to stay the appeal and filed a motion for rehearing on the ground of newly discovered evidence, sec. 48.46.

The court of appeals stayed the appeal and remanded the case for further proceedings. After a hearing, the circuit court denied the motion for rehearing. The appellate proceedings then continued, and the court of appeals affirmed both orders of the circuit court.

T.M.F. raises several issues before this court concerning the adequacy of the first hearing at which the circuit court terminated her parental rights to D.L.S. She contends that she did not give voluntary and informed consent to the termination of her parental rights as sec. 48.41, Stats. 1979-80, requires; that she was not advised that she had a right to counsel at her own expense at the termination hearing, sec. 48.23(5); and that the termination proceedings were invalid because the interests of the public were not represented as sec. 48.09(6) requires. T.M.F. also contends that she had presented sufficient new evidence to warrant a rehearing under sec. 48.46. Since we conclude that the circuit court erred in concluding that T.M.F. gave a voluntary and informed consent to the termination of her parental rights, we do not decide the other issues she raises.

A judicial proceeding terminating parental rights implicates a parent's fundamental rights. In re Termination of Parental Rights to T.R.M., 100 Wis. 2d 681, 689, 303 N.W.2d 581 (1981). At stake is the parent's interest in the companionship, care, custody, and management of his or her child. This court has recognized that these interests are "cognizable and substantial" and that the integrity of the family is subject to constitutional protection through the due process clause of the state and federal constitutions. In Interest of J.L.W., 102 Wis. 2d 118, 132, 133, 136, 306 N.W.2d 46 (1981). "reedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment." Santosky v. Kramer, 455 U.S. 745, 753 (1982). *fn4

The state and the parent share an interest in ensuring that the decision to terminate parental status is accurate and just. In view of these concerns, the Wisconsin legislature has imposed on the circuit court the responsibility to determine whether the parent's consent to termination of his or her parental rights is voluntary and informed and has set forth the conditions under which the court may accept a parent's voluntary consent. Secs. 48.41, 48.42, 48.422(1), (3), (4), (7), *fn5 Stats. 1979-80.

The circuit court must hold a hearing on the petition to terminate parental rights and give notice to interested persons. Secs. 48.42, 48.422, Stats. 1979-80. The parent personally appears at the hearing and gives his or her consent, but the Judge may accept this consent only after the Judge has explained the parent's rights at the hearing pursuant to sec. 48.422(1) (4) and the effect of termination of parental rights and after the Judge has questioned the parent and is satisfied that the consent is "informed and voluntary." Sec. 48.41(2) (a). The court must take further care when the parent is a minor, as in this case. The circuit court may not accept the minor parent's consent "unless it is joined by the consent of his or her guardian ad litem." Sec. 48.41(3). The parent is also entitled to retain counsel of his or her own choosing and at his or her own expense. Sec. 48.23(5).

The legislatively prescribed procedures underscore the importance of the judicial proceeding to terminate parental rights when the parent has given his or her consent. The judicial proceeding is not a mere formality; the circuit court does not simply rubber-stamp the parent's consent. The circuit court must ensure that the parent has adequately considered the decision to terminate parental rights to the child, surely one of the most difficult decisions a person can ever make.

Because the circuit court's decision on termination of parental rights will form the basis for the future Disposition of the child, the circuit court must exercise all available precautions, reflected in its judicial inquiry on the record, to ensure that the consent is voluntary and informed. The circuit court's care in making a record of a full inquiry in reaching a decision will further the interests of all concerned: It will help ensure that the circuit court's decision is just and accurate, thereby decreasing the likelihood of appeal, and in the unlikely event of appeal, it will facilitate appellate review. Adoption of Robin, 571 P.2d 850 (Okla. 1977); Guardianship of Baby Boy M., 66 Cal App. 3d 254, 274, 135 Cal. Rptr. 866 (1977); In Re Adoption of Anonymous, 60 Misc. 2d 854, 304 N.Y.S. 2d 46, 52 (1969). Finality of the circuit court's decision is critical, because the delays and uncertainties involved in appeals and rehearings leave a child "in limbo" for a substantial period of time and may even result in taking a child from an established home life.

No decision of this court has delineated the standard an appellate court should use to review a circuit court's Conclusion that the parent's consent to terminate parental rights was voluntary and informed. The court of appeals, without Discussion, treated the circuit court's Conclusion as a finding of fact which "will be reversed if the finding is against the great weight and clear preponderance of the evidence." *fn6 The court of appeals thus deferred, to a great extent, to the circuit court's decision.

T.M.F. argues that the circuit court's Conclusion that the parent's consent is voluntary and informed involves a mixed question of fact and law and that an appellate court may review the legal Conclusion, that is, that the facts fit the legal standard of "voluntary and informed," without deferring to the circuit court's decision. The practical difference between the standard of review used by the court of appeals and that urged by T.M.F. is the degree of finality that a circuit court's decision will have. The court of appeals' standard makes the decision more final; T.M.F.'s standard, less. *fn7

We agree with T.M.F. that the circuit court's Conclusion is one of law, but we disagree that the label "question of law" automatically allows the appellate courts free rein in reviewing the circuit court's Conclusion. The weight to be given the trial court's Conclusion of law depends on the nature of the trial court's decision-making process, the relative expertise of the trial and appellate courts as decision makers, and the need for a narrow scope of review to give finality to ...


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